PART I: HUMAN RIGHTS FRAMEWORK
The Laws And Policies For Responsible Business Conduct
Soy Kimsan, Radu Mares
By ratifying a human rights treaty, states acquire obligations to respect and ensure human rights under international law. These obligations are commonly referred to as obligations to ‘respect-protect-fulfil’ human rights. That means states should use a combination of legal, policy, administrative and other measures to ensure that human rights are enjoyed in practice. That means the government is obliged to regulate the private sector – through preventive and remedial measures – so that companies are less likely to inflict harm and cannot operate with impunity. In practice however, states often fall short of creating the strong laws and institutions needed for protecting human rights. In view of this ‘regulatory gap’, societal pressure has grown on transnational and local businesses to respect international standards in their operations even when a state is unwilling or unable to safeguard human rights. This pressure has grown in the last 30 years and such increased attention to CSR has manifested itself in international soft law (see chapter 2), corporate self-regulation (see chapter 8) and private governance arrangements such as multistakeholder collaborative initiatives (see chapter 5). The UN indicates that it is desirable, and perhaps even legally expected, for states to regulate ‘their’ companies when they operate in other countries: this is the discussion about the ‘extraterritoriality’ of state obligations to protect human rights (see chapter 4). But extraterritorial jurisdiction is controversial as it can lead to abuses by powerful states and create tensions between sovereign states. There is however a better way, and since 2014 the UN has begun discussions – currently on-going – on a possible treaty on corporate accountability, which would be a development in hard law to address this ‘gap’ in international law. Finally, hard law exists in relation to trade and investment (see chapter 3) and such treaties are meant to facilitate international economic activities. However, these economic agreements have been criticized for encouraging business activities while neglecting their sometimes serious negative social and environmental impacts. At the national level, over 20 countries have developed National Action Plans on business and human rights where the government seeks to increase policy coherence and outline a variety of measures on corporate responsibilities and access to remedies (chapters 6 and 7). In sum, it is now well accepted that states can and should regulate and facilitate responsible business conduct, through both international law and national regulations. Importantly though, market competition – between companies, and between states – is an important dynamic that can influence states ability to regulate in the public interest and businesses’ ability to self-regulate.
Cambodia has slowly transitioned to a full market economy and has sustained an average growth rate of 7-8% since 1998. As a result, Cambodia has significantly reduced poverty and, eventually, become a lower middle-income country in 2015. While the country is aiming to achieve the upper middle-income status by 2030, its economic growth has in some ways proceeded without sufficient consideration on human rights. Over the years, there have been reports of human rights violations perpetrated by businesses across different economic sectors, especially the land sector, often with the government’s support or acquiescence. Yet, business and human rights is a relatively a new concept in Cambodia. For example, the government development policy, particularly the 2018 Rectangular Strategy – Phase IV tends to focus on promoting business activities and job creation, while there are virtually no policy measures on business respect for human rights. Furthermore, the government perceives human rights issues as a brake to economic growth and a political maneuver by the opposition and civil society organizations. In recent years, there have seen successive crackdowns on independent media, human rights defenders and NGOs. However, the government could instead see such actors as watchdogs to promote responsible business conduct and, thus recognize their valuable contribution to achieving a sustainable and inclusive economic growth for all in the country.
To date, Cambodia has ratified eight out of nine core international human rights treaties and the eight core ILO conventions. The government is therefore legally bound to respect, protect and fulfil human rights in its territory, including protecting Cambodian citizens from human rights violations by non-state actors such as businesses. Its legal obligations in relation to human rights are emphasized in Article 31 of the Constitution of the Kingdom of Cambodia, which incorporates international human rights standards directly into Cambodian law and practice. Once incorporated into domestic legal order, these internationally recognized human rights are protected through several bodies of law, including civil law, criminal law, labor law, administrative law, property law, social security law and many others. However, as in other countries, such laws may have deficiencies and gaps or may not be enforced rigorously (or at all). It is these regulatory and enforcement gaps that allow businesses to pursue profits with relative impunity for involvement in human rights abuses. Such abuses will call into question Cambodia’s responsibility under international law for its failure to comply with its obligations under the human rights treaties it has chosen to ratify.
- State obligations to respect, protect and fulfill human rights
- Extraterritorial obligations of states
- Progressive realization of socioeconomic rights
- Compatibility of human rights with different political and economic systems
- Privatization of public services
- Obligations of non-state actors under international law
- UN treaty on corporate accountability
- Sustainable Development Goals in the context of business and human rights
- Regulatory options regarding corporate human rights responsibilities
- Analytical framework to operationalize economic, social and cultural rights.
- Human rights in Cambodia
- Benefits of CSR for Cambodia
- International treaties and mechanisms applicable to Cambodia
- Relation between domestic law and international law
- National human rights mechanisms in Cambodia
46. The right to education, like all human rights, imposes three types or levels of obligations on States parties: the obligations to respect, protect and fulfil. In turn, the obligation to fulfil incorporates both an obligation to facilitate and an obligation to provide.
47. The obligation to respect requires States parties to avoid measures that hinder or prevent the enjoyment of the right to education. The obligation to protect requires States parties to take measures that prevent third parties from interfering with the enjoyment of the right to education. The obligation to fulfil (facilitate) requires States to take positive measures that enable and assist individuals and communities to enjoy the right to education. Finally, States parties have an obligation to fulfil (provide) the right to education. As a general rule, States parties are obliged to fulfil (provide) a specific right in the Covenant when an individual or group is unable, for reasons beyond their control, to realize the right themselves by the means at their disposal. However, the extent of this obligation is always subject to the text of the Covenant.
8. The Committee notes that the undertaking “to take steps … by all appropriate means including particularly the adoption of legislative measures” neither requires nor precludes any particular form of government or economic system being used as the vehicle for the steps in question, provided only that it is democratic and that all human rights are thereby respected. Thus, in terms of political and economic systems the Covenant is neutral and its principles cannot accurately be described as being predicated exclusively upon the need for, or the desirability of a socialist or a capitalist system, or a mixed, centrally planned, or laissez-faire economy, or upon any other particular approach. In this regard, the Committee reaffirms that the rights recognized in the Covenant are susceptible of realization within the context of a wide variety of economic and political systems, provided only that the interdependence and indivisibility of the two sets of human rights, as affirmed inter alia in the preamble to the Covenant, is recognized and reflected in the system in question. The Committee also notes the relevance in this regard of other human rights and in particular the right to development.
9. The principal obligation of result reflected in article 2 (1) is to take steps “with a view to achieving progressively the full realization of the rights recognized” in the Covenant. The term “progressive realization” is often used to describe the intent of this phrase. The concept of progressive realization constitutes a recognition of the fact that full realization of all economic, social and cultural rights will generally not be able to be achieved in a short period of time. In this sense the obligation differs significantly from that contained in article 2 of the International Covenant on Civil and Political Rights which embodies an immediate obligation to respect and ensure all of the relevant rights. Nevertheless, the fact that realization over time, or in other words progressively, is foreseen under the Covenant should not be misinterpreted as depriving the obligation of all meaningful content. It is on the one hand a necessary flexibility device, reflecting the realities of the real world and the difficulties involved for any country in ensuring full realization of economic, social and cultural rights. On the other hand, the phrase must be read in the light of the overall objective, indeed the raison d’être, of the Covenant which is to establish clear obligations for States parties in respect of the full realization of the rights in question. It thus imposes an obligation to move as expeditiously and effectively as possible towards that goal. Moreover, any deliberately retrogressive measures in that regard would require the most careful consideration and would need to be fully justified by reference to the totality of the rights provided for in the Covenant and in the context of the full use of the maximum available resources.
1. Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.
2. The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
3. Developing countries, with due regard to human rights and their national economy, may determine to what extent they would guarantee the economic rights recognized in the present Covenant to non-nationals.
2. The Committee has previously considered the growing impact of business activities on the enjoyment of specific Covenant rights relating to health, housing, food, water, social security, the right to work, the right to just and favourable conditions of work and the right to form and join trade unions. In addition, the Committee has addressed the issue in concluding observations on States parties’ reports, and in its first decision on an individual communication. In 2011, it adopted a statement on State obligations related to corporate responsibilities in the context of the Covenant rights. The present general comment should be read together with these earlier contributions. It also takes into account advances within the International Labour Organization and within regional organizations such as the Council of Europe. In adopting the present general comment, the Committee has considered the Guiding Principles on Business and Human Rights endorsed by the Human Rights Council in 2011, as well as the contributions made to this issue by human rights treaty bodies and various special procedures.
Obligations to respect, to protect and to fulfil
10. The Covenant establishes specific obligations of States parties at three levels — to respect, to protect and to fulfil. These obligations apply both with respect to situations on the State’s national territory, and outside the national territory in situations over which States parties may exercise control. (…)
Obligation to respect
12. The obligation to respect economic, social and cultural rights is violated when States parties prioritize the interests of business entities over Covenant rights without adequate justification, or when they pursue policies that negatively affect such rights. This may occur for instance when forced evictions are ordered in the context of investment projects. (…)
Obligation to protect
14. The obligation to protect means that States parties must prevent effectively infringements of economic, social and cultural rights in the context of business activities. (…)
16. The obligation to protect entails a positive duty to adopt a legal framework requiring business entities to exercise human rights due diligence in order to identify, prevent and mitigate the risks of violations of Covenant rights, to avoid such rights being abused, and to account for the negative impacts caused or contributed to by their decisions and operations and those of entities they control on the enjoyment of Covenant rights. States should adopt measures such as imposing due diligence requirements to prevent abuses of Covenant rights in a business entity’s supply chain and by subcontractors, suppliers, franchisees, or other business partners.
18. States would violate their duty to protect Covenant rights, for instance, by failing to prevent or to counter conduct by businesses that leads to such rights being abused, or that has the foreseeable effect of leading to such rights being abused, for instance through lowering the criteria for approving new medicines, by failing to incorporate a requirement linked to reasonable accommodation of persons with disabilities in public contracts, by granting exploration and exploitation permits for natural resources without giving due consideration to the potential adverse impacts of such activities on the individual and on communities’ enjoyment of Covenant rights, by exempting certain projects or certain geographical areas from the application of laws that protect Covenant rights, or by failing to regulate the real estate market and the financial actors operating on that market so as to ensure access to affordable and adequate housing for all. Such violations are facilitated where insufficient safeguards exist to address corruption of public officials or private-to-private corruption, or where, as a result of corruption of judges, human rights abuses are left unremedied.
21. The increased role and impact of private actors in traditionally public sectors, such as the health or education sector, pose new challenges for States parties in complying with their obligations under the Covenant. Privatization is not per se prohibited by the Covenant, even in areas such as the provision of water or electricity, education or health care where the role of the public sector has traditionally been strong. Private providers should, however, be subject to strict regulations that impose on them so-called “public service obligations”: in the provision of water or electricity, this may include requirements concerning universality of coverage and continuity of service, pricing policies, quality requirements, and user participation. Similarly, private health-care providers should be prohibited from denying access to affordable and adequate services, treatments or information. For instance, where health practitioners are allowed to invoke conscientious objection to refuse to provide certain sexual and reproductive health services, including abortion, they should refer the women or girls seeking such services to another practitioner within reasonable geographical reach who is willing to provide such services.
Obligation to fulfil
23. The obligation to fulfil requires States parties to take necessary steps, to the maximum of their available resources, to facilitate and promote the enjoyment of Covenant rights, and, in certain cases, to directly provide goods and services essential to such enjoyment. Discharging such duties may require the mobilization of resources by the State, including by enforcing progressive taxation schemes. It may require seeking business cooperation and support to implement the Covenant rights and comply with other human rights standards and principles.
1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. (…)
8. The article 2, paragraph 1, obligations are binding on States [Parties] and do not, as such, have direct horizontal effect as a matter of international law. The Covenant cannot be viewed as a substitute for domestic criminal or civil law. However the positive obligations on States Parties to ensure Covenant rights will only be fully discharged if individuals are protected by the State, not just against violations of Covenant rights by its agents, but also against acts committed by private persons or entities that would impair the enjoyment of Covenant rights in so far as they are amenable to application between private persons or entities. There may be circumstances in which a failure to ensure Covenant rights as required by article 2 would give rise to violations by States Parties of those rights, as a result of States Parties’ permitting or failing to take appropriate measures or to exercise due diligence to prevent, punish, investigate or redress the harm caused by such acts by private persons or entities. States are reminded of the interrelationship between the positive obligations imposed under article 2 and the need to provide effective remedies in the event of breach under article 2, paragraph 3. The Covenant itself envisages in some articles certain areas where there are positive obligations on States Parties to address the activities of private persons or entities. For example, the privacy-related guarantees of article 17 must be protected by law. It is also implicit in article 7 that States Parties have to take positive measures to ensure that private persons or entities do not inflict torture or cruel, inhuman or degrading treatment or punishment on others within their power. In fields affecting basic aspects of ordinary life such as work or housing, individuals are to be protected from discrimination within the meaning of article 26.
10. States Parties are required by article 2, paragraph 1, to respect and to ensure the Covenant rights to all persons who may be within their territory and to all persons subject to their jurisdiction. This means that a State party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party. As indicated in General Comment 15 adopted at the twenty-seventh session (1986), the enjoyment of Covenant rights is not limited to citizens of States Parties but must also be available to all individuals, regardless of nationality or statelessness, such as asylum seekers, refugees, migrant workers and other persons, who may find themselves in the territory or subject to the jurisdiction of the State Party. This principle also applies to those within the power or effective control of the forces of a State Party acting outside its territory, regardless of the circumstances in which such power or effective control was obtained, such as forces constituting a national contingent of a State Party assigned to an international peace-keeping or peace-enforcement operation.
Introduction to the Guiding Principles
13. What do these Guiding Principles do? And how should they be read? Council endorsement of the Guiding Principles, by itself, will not bring business and human rights challenges to an end. But it will mark the end of the beginning: by establishing a common global platform for action, on which cumulative progress can be built, step-by-step, without foreclosing any other promising longer-term developments.
14. The Guiding Principles’ normative contribution lies not in the creation of new international law obligations but in elaborating the implications of existing standards and practices for States and businesses; integrating them within a single, logically coherent and comprehensive template; and identifying where the current regime falls short and how it should be improved. (…)
The State duty to protect human rights
1. States must protect against human rights abuse within their territory and/or jurisdiction by third parties, including business enterprises. This requires taking appropriate steps to prevent, investigate, punish and redress such abuse through effective policies, legislation, regulations and adjudication.
States’ international human rights law obligations require that they respect, protect and fulfil the human rights of individuals within their territory and/or jurisdiction. This includes the duty to protect against human rights abuse by third parties, including business enterprises.
The State duty to protect is a standard of conduct. Therefore, States are not per se responsible for human rights abuse by private actors. However, States may breach their international human rights law obligations where such abuse can be attributed to them, or where they fail to take appropriate steps to prevent, investigate, punish and redress private actors’ abuse. While States generally have discretion in deciding upon these steps, they should consider the full range of permissible preventative and remedial measures, including policies, legislation, regulations and adjudication. States also have the duty to protect and promote the rule of law, including by taking measures to ensure equality before the law, fairness in its application, and by providing for adequate accountability, legal certainty, and procedural and legal transparency.
4. States should take additional steps to protect against human rights abuses by business enterprises that are owned or controlled by the State, or that receive substantial support and services from State agencies such as export credit agencies and official investment insurance or guarantee agencies, including, where appropriate, by requiring human rights due diligence.
7. Because the risk of gross human rights abuses is heightened in conflict-affected areas, States should help ensure that business enterprises operating in those contexts are not involved with such abuses, including by:
(a) Engaging at the earliest stage possible with business enterprises to help them identify, prevent and mitigate the human rights-related risks of their activities and business relationships;
(b) Providing adequate assistance to business enterprises to assess and address the heightened risks of abuses, paying special attention to both gender-based and sexual violence;
(c) Denying access to public support and services for a business enterprise that is involved with gross human rights abuses and refuses to cooperate in addressing the situation;
(d) Ensuring that their current policies, legislation, regulations and enforcement measures are effective in addressing the risk of business involvement in gross human rights abuses.
Article 1. Definitions
2. “Human rights abuse” shall mean any harm committed by a business enterprise, through acts or omissions in the context of business activities, against any person or group of persons, that impedes the full enjoyment of internationally recognized human rights and fundamental freedoms, including regarding environmental rights. (…)
4. “Business activities of a transnational character” means any business activity described in paragraph 3 of this Article, when:
a) It is undertaken in more than one jurisdiction or State; or
b) It is undertaken in one State through any business relationship but a substantial part of its preparation, planning, direction, control, design, processing, or manufacturing, storage or distribution, takes place in another State; or
c) It is undertaken in one State but has substantial effect in another State.
Article 2. Statement of purpose
1. The purpose of this (Legally Binding Instrument) is:
a. To clarify and facilitate effective implementation of the obligation of States to respect, protect and promote human rights in the context of business activities, as well as the responsibilities of business enterprises in this regard;
b. To prevent the occurrence of human rights abuses in the context of business activities;
c. To ensure access to justice and effective remedy for victims of human rights abuses in the context of such business activities;
d. To facilitate and strengthen mutual legal assistance and international cooperation to prevent human rights abuses in the context of business activities and provide access to justice and effective remedy to victims of such abuses.
Article 6. Prevention
2. (…) State Parties shall require business enterprises, to undertake human rights due diligence proportionate to their size, risk of severe human rights impacts and the nature and context of their operations, as follows:
a. Identify and assess any actual or potential human rights abuses that may arise from their own business activities, or from their business relationships;
b. Take appropriate measures to prevent and mitigate effectively the identified actual or potential human rights abuses, including in their business relationships;
c. Monitor the effectiveness of their measures to prevent and mitigate human rights abuses, including in their business relationships;
d. Communicate regularly and in an accessible manner to stakeholders, particularly to affected or potentially affected persons, to account for how they address through their policies and measures any actual or potential human rights abuses that may arise from their activities including in their business relationships. (…)
Article 7. Legal liability
4. States Parties shall adopt legal and other measures necessary to ensure that their domestic jurisdiction provides for effective, proportionate, and dissuasive criminal and/or administrative sanctions where legal or natural persons conducting business activities, have caused or contributed to criminal offences or other regulatory breaches that amount or lead to human rights abuses. (…)
6. State Parties may require legal or natural persons conducting in business activities in their territory or jurisdiction, including those of a transnational character, to establish and maintain financial security, such as insurance bonds or other financial guarantees to cover potential claims of compensation. (…)
7. States Parties shall ensure that their domestic law provides for the liability of legal or natural or legal persons conducting business activities, including those of transnational character, for their failure to prevent another legal or natural person with whom it has a business relationship, from causing or contributing to human rights abuses, when the former legally or factually controls or supervises such person or the relevant activity that caused or contributed to the human rights abuse, or should have foreseen risks of human rights abuses in the conduct of their business activities, including those of transnational character, or in their business relationships, but failed to put adequate measures to prevent the abuse. (…)
Article 14. Consistency with international law principles and instruments
1. States Parties shall carry out their obligations under this (Legally Binding Instrument) in a manner consistent with, and fully respecting, the principles of sovereign equality and territorial integrity of States and that of non-intervention in the domestic affairs of other States. (…)
5. States Parties shall ensure that:
a. any existing bilateral or multilateral agreements, including regional or sub-regional agreements, on issues relevant to this (Legally Binding Instrument) and its protocols, including trade and investment agreements, shall be interpreted and implemented in a manner that will not undermine or limit their capacity to fulfill their obligations under this (Legally Binding Instrument) and its protocols, as well as other relevant human rights conventions and instruments.
b. Any new bilateral or multilateral trade and investment agreements shall be compatible with the State Parties’ human rights obligations under this (Legally Binding Instrument) and its protocols, as well as other relevant human rights conventions and instruments.
Article 15. Institutional arrangements
1. There shall be a Committee established in accordance with the following procedures:
a. The Committee shall consist, at the time of entry into force of the present (Legally Binding Instrument), (12) experts. (…) The members of the Committee shall serve in their personal capacity and shall be of high moral standing and recognized competence in the field of human rights, public international law or other relevant fields.
b. The experts shall be elected by the State Parties (…)
2. State Parties shall submit to the Committee, through the Secretary-General of the United Nations, reports on the measures they have taken to give effect to their undertakings under this (Legally Binding Instrument) (…)
4. The Committee shall have the following functions:
a. Make general comments and normative recommendations on the understanding and implementation of the (Legally Binding Instrument) based on the examination of reports and information received from the State Parties and other stakeholders;
b. Consider and provide concluding observations and recommendations on reports submitted by State Parties (…);
c. Provide support to the State Parties in the compilation and communication of information required for the implementation of the provisions of the (Legally Binding Instrument); (…)
7. States Parties shall establish an International Fund for Victims covered under this (Legally Binding Instrument), to provide legal and financial aid to victims. (…)
This Report describes measures that States can adopt to ensure that businesses engage in human rights due diligence. The research that informs this report examined existing due diligence regimes from around the world in areas analogous to, or relevant for, human rights, such as labor standards, environmental protection, consumer protection, and the prevention and detection of financial crimes such as money laundering and bribery (corruption). The research also revealed that new State practice is emerging in the area of human rights due diligence specifically.
A key conclusion of this Report is that there is ample evidence that States already use due diligence in regulation as a means to ensure companies meet specified standards of behavior. The objective served by such regulation is to prevent adverse impacts or harms and to protect people, in part by clarifying standards of compliance for business enterprises. States already deploy due diligence in this manner in jurisdictions around the world. (…)
National and international due diligence regimes require business enterprises to implement due diligence across organizational and national boundaries. An examination of various national and international legal texts that rely on due diligence suggests due diligence is used by these different legal regimes to overcome the obstacles to effective regulation posed by complex corporate structures or trans-jurisdictional activities. (…)
The options described in the Report indicate at least four main regulatory approaches through which States can ensure human rights due diligence activities by business. Usually these approaches co-exist within the same jurisdictions and legal systems. The first approach imposes a due diligence requirement as a matter of regulatory compliance. States implement rules that require business enterprises to conduct due diligence, either as a direct legal obligation formulated in a rule, or indirectly by offering companies the opportunity to use due diligence as a defense against charges of criminal, civil or administrative violations. For example, the courts use business due diligence to assess business compliance with environmental, labor, consumer protection and anti-corruption laws. Similarly, regulatory agencies regularly require business due diligence as the basis upon which to grant approvals and licenses for business activities.
The second regulatory approach provides incentives and benefits to companies in return for their being able to demonstrate due diligence practice. For example, in order for business enterprises to qualify for export credit, labeling schemes or other forms of State support, States often require due diligence on environmental and social risks.
A third approach is for States to encourage due diligence through transparency and disclosure mechanisms. States implement rules that require business enterprises to disclose due diligence with the intention that markets and society will attempt to constrain any identified harms. For example, securities laws, consumer protection laws and reporting requirements for corporate social responsibility operate on the logic that information serves the interests and will prompt action by investors, regulators, and people who might be adversely affected by a business activity.
A fourth category involves a combination of one or more of these approaches. States regularly combine aspects of these approaches in order to construct an incentive structure that promotes respect by business for the standards set down in the rules and ensures that compliance can be assessed in an efficient and effective manner. For example, administrative rules governing environmental protection, labor rights, consumer protection or anti-corruption may require business due diligence as the bases for a license or approval, and may also require regular reporting disclosure of due diligence activities by business. Enforcement of such rules can combine a combination of administrative penalty (fines), criminal law sanctions and the possibility of civil action.
3. All States have obligations to respect, protect and fulfil human rights, including civil, cultural, economic, political and social rights, both within their territories and extraterritorially.
8. Definition of extraterritorial obligations
Extraterritorial obligations encompass:
a) obligations relating to the acts and omissions of a State, within or beyond its territory, that have effects on the enjoyment of human rights outside of that State’s territory; and
b) obligations of a global character that are set out in the Charter of the United Nations and human rights instruments to take action, separately, and jointly through international cooperation, to realize human rights universally.
The value of National Action Plans on Business and Human Rights
The UNWG considers that NAPs, and the process to develop them, can provide for:
- Greater coordination and coherence within Government on the range of public policy areas that relate to business and human rights;
- An inclusive process to identify national priorities and concrete policy measures and action;
- Transparency and predictability for interested domestic and international stakeholders;
- A process of continuous monitoring, measuring and evaluation of implementation;
- A platform for ongoing multi-stakeholder dialogue; and
- A flexible yet common format that facilitates international cooperation, coordination, and exchanges of good practices and lessons learned.
The UNGPs as the foundation for NAPs
A NAP is an instrument to implement the UNGPs. In line with the UNGPs, NAPs must be based on international human rights standards and reflect the complementarity and interrelatedness of State obligations and business responsibilities in preventing, mitigating and remedying adverse business-related human rights impacts. NAPs as public policy strategies should, in the first instance, provide answers as to how States plan to implement their human rights obligations. (…)
The chapter first analyzes Ruggie’s response to the most fundamental legal issue presented to him: does the entire body of human rights law apply directly to corporations? Rejecting the approach taken by a group of UN experts two years earlier, Ruggie answered the question with an emphatic negative. International law supports his position; indeed, the opposite view is legally untenable. By itself, however, his restatement of existing law would not have quelled the controversy over the relationship of human rights law and corporations. But Ruggie did not stop there. He offered a new Framework and Guiding Principles that attempt (1) to elaborate the legal duties of states to protect against human rights abuses by regulating corporate conduct, and (2) to set out responsibilities for corporations that are not binding but that nevertheless provide a basis for monitoring and remediating corporate misconduct. (…) Here, I look at their complicated relationship with human rights law, examining both how the Principles draw on existing law and whether they prepare the ground for the law to recognize direct corporate duties in the future.
Second, the chapter discusses three narrower issues: (a) Even if corporations are not bound by the body of human rights law, are they at least obliged to refrain from committing particularly heinous abuses that are defined as international crimes? (b) When can corporations be complicit in state violations of human rights law? and (c) Does the state duty to protect extend extraterritorially, to actions by corporations outside the territory of their home state? International law does not yet provide a definitive answer to any of these questions. This chapter describes Ruggie’s positions: (a) corporations may be liable for committing international crimes; (b) corporations can be complicit in a state violation if they knowledgeably assist in its commission, even if they did not intend the violation to occur; and (c) the state duty to protect does not extend extraterritorially, although states should nevertheless encourage corporations to respect human rights abroad. These positions will help to inform, although they will certainly not end, the ongoing debate over how international law should address corporate abuses of human rights.
Developed countries have generally opposed extraterritorial human rights obligations, and developing countries may not always like the idea, either, in the context of a duty to protect (as opposed to a duty to assist). Olivier de Schutter states that “in general, it may be anticipated that control by the home States of the activities of transnational corporations will be resented as a limitation to the sovereign right of the territorial States concerned to regulate activities occurring on their territory, or as betraying a distrust of the ability of those States to effectively protect their own populations from the activities of foreign corporations.”138 If Ruggie believed that stronger statements of legal obligation would have been opposed from both richer and poorer countries, then he may have felt that he could go no further than emphasizing, as he did, that states have the authority to regulate the extraterritorial conduct of their companies and that they should exercise that authority more often. As so often in international law, legal changes in this regard may follow from changes in the practice of states, rather than vice versa.
The development of the AAAQ frameworks relies on a review and mapping methodology in order to operationalise the selected ESC [economic, social and cultural] rights.
Availability identifies whether there is a sufficient amount of water available within a given geographical area (e.g. a country, a district or a village) and whether there is a regular supply of water over time. Thereby the availability criterion takes into account seasonal changes in water supply according to weather patterns as well as the regularity of supply on a daily basis. Availability is viewed from a supply perspective in terms of ensuring enough water is available at any given time in a specific location. (…)
Accessibility concerns the level of access and identifies who has access and thereby encompasses the human rights principles of non-discrimination, participation and accountability. There might be an abundance of water within a country or a district, but there are a variety of factors that influence rights holders’ ability to access water. Accessibility is divided into four sub-criteria to help identify the barriers for accessing water.
- Physical accessibility means that water must be within physical reach and that it can be accessed without physical threats.
- Economic accessibility is often referred to as Affordability and concerns the cost of accessing water and attention is given to whether the cost of water threatens the realization of other rights; e.g. if a family is forced to prioritise between water for the family and school fees for the children.
- Non-discrimination is a specific element of accessibility as well as an overarching human rights principle for all AAAQ criteria. In its simplest form, the non-discrimination criterion can be addressed through disaggregating data on the other AAAQ indicators based on prohibited grounds of discrimination. (…)
- Information accessibility concerns the accessibility of information on water related issues and should consider e.g. the frequency, medium, form and language of the information. In a broader perspective, information accessibility also relates to the openness and responsiveness of public institutions to the requests and needs for information about water governance institutions and processes. This includes provision of information about how and when rights holders can participate in policy and decision-making processes as well as establishment of mechanisms for feedback and complaints. (…)
Acceptability concerns subjective assessments of the rights holders’ perceptions about water and the delivery of water. A distinction is made between consumer and cultural acceptability. Consumer acceptability includes the characteristics of the water (e.g. odour, taste and colour) as well as procedural considerations (e.g. the behaviour of water suppliers). Cultural acceptability refers to subjective perceptions based on the culture of individuals, minority groups and communities. (…)
Quality concerns the quality of water in objective, scientific terms and it is closely tied to international quality standards. Assessing the quality of water is highly complex and requires technical expertise on micro-organisms and chemicals that might pose a health risk. WHO and UNICEF are leaders in the field of water quality and have defined a set of core parameters for water quality (microbial quality, physical parameters and chemical parameters). (…)
11. The 2030 Agenda for Sustainable Development explicitly recognizes that the promotion and protection of human rights is both a prerequisite to achieving the Sustainable Development Goals as well as a result. The principle of leaving no one behind is perhaps the clearest expression of this link. Indeed, respect for human rights is an integral part of ensuring lasting development and peace in Cambodia. Nevertheless, over the past year, government ministers, both during meetings and through the submission of official documents, have addressed comments to Special Rapporteur that prioritize peace, stability and development over human rights. Respect for rights and freedoms are enshrined in the Cambodian Constitution and Cambodia has ratified almost all the core human rights treaties. Human rights cannot be selectively respected or ignored, and they must never be sacrificed. Peace without justice is unsustainable; development without freedom leaves people behind.
89. The overall human rights situation in Cambodia has suffered over the past year. On one hand, the ongoing economic growth that Cambodia is enjoying has paved the way for improvements in the area of economic and social rights, in particular, social protection, minimum wage and maternity leave (…) The dissolution of Cambodian National Rescue Party (CNRP) and the imprisonment of its President, Kem Sokha, the banning of 118 CNRP officials from political activity for five years and the reallocation of CNRP seats to unelected representatives have seriously strained political rights. Developments in law, policy and practice, including amendment of the Constitution to introduce a lèse-majesté law, have targeted critical and dissenting voices and significantly curtailed fundamental freedoms. These developments are grave. For economic development to be sustainable, the indivisibility of rights dictates that respect for civil and political rights should accompany improvements in economic and social rights.
Article 31: Every Khmer citizen shall be equal before the law, enjoying the same rights, freedom and fulfilling the same obligations regardless of race, color, sex, language, religious belief, political tendency, birth origin, social status, wealth or other status. The exercise of personal rights and freedom by any individual shall not adversely affect the rights and freedoms of others.
Article 36: (…) Khmer citizens of both sexes shall receive equal pay for equal work. (…) Khmer citizens of both sexes shall have the right to enjoy social security and other social benefits as determined by law. (…)
Cambodia has become party to the following core international human rights treaties and some of their optional protocols:
- International Covenant on Economic Social and Cultural Rights (ICESCR)
- International Covenant on Civil and Political Rights (ICCPR)
- International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)
- Convention on the Elimination of Discrimination against Women (CEDAW) and its Optional Protocol
- Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and its Optional Protocol
- Convention on the Rights of the Child (CRC), its Optional Protocol on the sale of children, child prostitution and child pornography, and its Optional Protocol on the involvement of children in armed conflict
- Convention on the Rights of Persons with Disabilities
- Convention for the Protection of All Persons from Enforced Disappearance.
Cambodia has been a member of ILO since 1969 and ratified all the fundamental conventions of ILO as follows:
- Forced Labour Convention, 1930 (No. 29)
- Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87)
- Right to Organize and Collective Bargaining Convention, 1949 (No. 98)
- Equal Remuneration Convention, 1951 (No. 100)
- Abolition of Forced Labour Convention, 1957 (No. 105)
- Discrimination (Employment and Occupation) Convention, 1958 (No. 111)
- Minimum Age Convention, 1973 (No. 138)
- Worst Forms of Child Labour Convention, 1999 (No. 182)
[All States parties to a human rights treaty are obliged to submit regular reports to the United Nations on how the rights in the treaty are being implemented. These reports are reviewed by a committee of independent experts, often referred to as a “treaty body”. The Committee examines each report and addressed its concerns and recommendations to the State party in the form of “concluding observations”. The aim of this process is not to criticize governments, but to provide constructive advice on ways in which countries can make better progress towards ensuring that everyone can enjoy the rights set out in the treaty. The treaty body does not rely solely on information provided in the government’s report to make its assessment. It is also open to submissions from national and international non-governmental organizational (NGOs) as well as United Nations agencies, such as WHO or ILO.]
40. (…) It remains concerned, however, about report that microfinancing institutions charge high interest rates, require land titles as collateral and target poor clients, the majority of whom are women, and that, in the event of default, the land seized is frequently of much higher value than the debt, without the difference being compensated, which leaves many rural women destitute and homeless.
41. The Committee recommends that the State party ensure that rural women have access to low-interest loans and financial credit by effectively regulating microfinancing institutions and establishing an oversight mechanism to prevent exploitative lending practices. It also recommends that the State party adopt measures to facilitate opportunities for rural women to establish not only micro, small and medium-sized enterprises but also large enterprises.
28. Bearing in mind its General Recommendation No. 23 on the rights of indigenous peoples (1997), the Committee welcomes the Government’s development of a strategic plan for the development of indigenous peoples 2020-2024, and recommends that the state party [to] Protect indigenous people from attacks and intimidation, from government agents and private companies, as they seek to exercise their rights as it relates to communal lands (…)
31. The Committee notes efforts by the State party to prevent human trafficking, such as the National Plan of Action for Counter Trafficking (2019 – 2023), monitoring places of prostitution, and spreading information to business owners on issues related to trafficking. However, the Committee is deeply concerned that the State party remains a source, destination and transit country for human trafficking, in particular of women and girls, for purposes of sexual and labour exploitation. The Committee is particularly concerned about trafficking in children (art. 2 and 5).
26. The Committee notes that in the context of economic growth and increased domestic and foreign investment, the State party has taken positive measures to regulate the impact of business on child rights in the formal economy, such as the garment industry. The Committee is however concerned that the regulatory framework on the social and environmental responsibility of business corporations, both national and international, is not yet in place to prevent possible negative impact of their activities on children.
27. The Committee recommends that the State party continue to be vigilant about the compliance of its national law by local and foreign companies throughout its territory, and to establish and implement regulations to ensure that the business sector complies with international and domestic standards on corporate social and environmental responsibility, particularly with regard to child rights, in line with the United Nations Framework for Business and Human Rights which was adopted unanimously by the Human Rights Council in 2008, and which outlines the duty of States to protect against human rights abuses by businesses, corporate responsibilities to respect human rights, and the need for more effective access to remedies when violations occur.
72. The Committee urges the State party to:
(b) Condemn and take active measures against individuals and enterprises that enable, facilitate or exacerbate sex tourism;
19. The Committee urges the State party to pursue its efforts to prevent child sex tourism and orphanage tourism and to protect children from becoming victims by strengthening its regulatory framework and awareness-raising measures, including in rural areas, and to take all necessary measures to ensure that all cases of child sex tourism and orphanage tourism are investigated and that alleged perpetrators are prosecuted and duly sanctioned. The Committee also recommends that the State party:
(a) Conduct advocacy with the tourism industry and the media on the harmful effects of child sex tourism, widely disseminate the World Tourism Organization Global Code of Ethics for Tourism among travel agents and tourism agencies, and encourage these enterprises to become signatories to the Code of Conduct for the Protection of Children from Sexual Exploitation in Travel and Tourism (…)
1. Trafficking in persons. The Committee previously noted the Government’s indication that, within the framework of the National Action Plan of 2011-13 on the suppression of trafficking and sexual exploitation, it had monitored places where prostitution may occur; provided advice and rehabilitation to sex workers; and instructed over 700 business owners on issues related to sexual exploitation. It had also taken measures to inform recruitment agencies on the risks associated with the use of false documentation, as well as on the importance of providing pre-departure training for migrants. The Committee further noted the statistical information provided by the Government on the number of cases of trafficking in persons and sexual exploitation brought before the courts, as well as the number of victims identified and individuals accused. The Committee noted, in particular, that the number of victims of trafficking and sexual exploitation identified appeared to have decreased substantially during the period of implementation of the National Action Plan. However, no information was provided on the number of convictions, the penalties imposed on perpetrators or the specific action taken to protect and assist victims. (…)
2. Vulnerability of migrant workers to conditions of forced labour. While taking note of the measures undertaken by the Government, the Committee requests it to continue its efforts to ensure that all migrant workers are fully protected from abusive practices and conditions that amount to forced labour, and to continue providing information in this regard. The Committee also requests the government to continue providing information on the application in practice of Sub-Decree No. 190 of 2011 on labour migration and private recruitment agencies, as well as its supplementing Prakas, indicating the concrete results achieved.
5. While noting that international human rights treaties are part of Cambodian law and are directly applicable in Cambodian courts, the Committee is concerned at the apparently limited level of awareness of the provisions of the Covenant among the judiciary and the legal profession, resulting in a very small number of cases in which the provisions of the Covenant have been invoked or applied by courts in Cambodia (art. 2).
The State party should take appropriate measures to raise awareness of the Covenant among judges, prosecutors, lawyers and the public at large to ensure that its provisions are taken into account before national courts.
12. The Committee regrets that, despite the constitutional guarantees, it has not been established that Covenant provisions can in practice be invoked before or directly enforced by the State party’s national courts, tribunals or administrative authorities. In this regard, the Committee notes with concern, the lack of effective remedies for violations of human rights including economic, social and cultural rights, thereby undermining the State party’s ability to meet its obligations under the international human rights treaties that it has ratified including the International Covenant on Economic, Social and Cultural Rights.
The Committee draws the attention of the State party to its general comment No. 9 (1998) on the domestic application of the Covenant, and recommends that the State party take all appropriate measures to ensure the direct applicability of the Covenant provisions in its domestic legal order, including the conduct of training programmes for judges, lawyers and public officials. The Committee also requests the State party to include in its next periodic report detailed information on progress that has been made in this connection and on decisions of national courts, tribunals or administrative authorities giving effect to Covenant rights.
[The UPR is a unique process that involves a periodic review of the human rights records of all 193 UN Member States. The UPR is a significant innovation of the Human Rights Council based on equal treatment for all countries. It provides an opportunity for all States to declare what actions they have taken to improve the human rights situation in their countries and to overcome challenges to the enjoyment of human rights. The UPR also includes a sharing of best human rights practices around the globe.]
14. The United Nations country team indicated that business enterprises continued to have an important role in promoting the economic growth of Cambodia, which could affect the enjoyment of human rights, such as land and housing rights, rights in the workplace and gender equality, among other rights. That highlighted the Government’s role to protect human rights. (…)
12. The United Nations country team stressed that Cambodia had experienced significant deforestation and forest degradation in recent years, the main causes of which included conversion to commercial agriculture, mining, economic and social land concessions, legal and illegal settlements and farmland, large-scale infrastructure and hydropower development, road construction, legal and illegal logging, fuelwood harvesting and forest fires.
13. The Special Rapporteur on the situation of human rights in Cambodia highlighted issues with resettlement and compensation packages offered to persons and communities displaced by land concessions, including the adequacy of compensation and the appropriateness of relocation sites. She stressed that more needed to be done to ensure that compensation packages were fully understood by potential recipients and that all land disputes were resolved through a process free from threats, violence and intimidation.
14. The United Nations country team indicated that business enterprises continued to have an important role in promoting the economic growth of Cambodia, which could affect the enjoyment of human rights, such as land and housing rights, rights in the workplace and gender equality, among other rights. That highlighted the Government’s role to protect human rights. (…)
C. Economic, social and cultural rights
1. Right to work and to just and favorable conditions of work
33. The United Nations country team noted that, in 2017, the Government had introduced improved social protection for workers and a lump-sum payment scheme for pregnant workers and had raised the minimum wage for workers in the textile and footwear industries by 11 per cent in 2018. It also noted that the Government had suspended the drafting of a controversial bill on labour dispute resolution. Despite all those efforts, the living conditions of people working in factories, particularly women, were still poor and net salaries low. Sexual harassment at the workplace continued to be a serious problem, which undermined women’s rights and women’s participation in the economy. (…)
5. Migrants, refugees, asylum seekers and internally displaced persons
59. In the context of meeting international labour standards and Goal 8 of the Sustainable Development Goals, the United Nations country team encouraged the Government to increase protection mechanisms for Cambodian migrants abroad, including domestic workers, and closely monitor labour agencies recruiting and deploying Cambodian migrant workers abroad.
[The Special Rapporteur is an independent expert appointed by the United Nations Human Rights Council to follow and report on the human rights situation in Cambodia. She is not a United Nations staff member, does not receive a salary from the United Nations, and does not work for any government or interest group. Her task is to assess the human rights situation, report publicly about it, and work with the Government, civil society and others to foster international cooperation in this field. The Special Rapporteur undertakes regularly visits or missions to Cambodia and reports annually to the Human Rights Council. OHCHR provides her with logistical and technical assistance. The current Special Rapporteur is Ms. Rhona Smith (UK), who was appointed in March 2015.]
91. The Government is advised to exercise greater transparency in economic land concessions and other land deals involving Government officials or private enterprises, and is encouraged to strengthen the capacity and independence of the court system, the cadastral commissions, and the National Authority for Land Dispute Resolution so that they may exercise accountability, impartiality and greater efficiency in resolving disputes. (…)
93. When engaging in land deals either with the Government of Cambodia or other land owners, foreign Governments and international business organizations should bear in mind that they have a responsibility under international law to respect the human rights of the people of Cambodia. Sponsorship of the use of armed law enforcement officials to carry out an unlawful eviction is illegal under international law and should be made illegal in Cambodia as well.
133. There can be a cost benefit to inclusive development planning and preventing conflict. The Government should not assume that they are helping businesses by not holding them to account. On the contrary, businesses that do not respect human rights or offer effective remedies when they contribute to adverse impacts run an increasing risk of facing human rights litigation, disruption in operations due to conflicts, or negative publicity by being associated with abuses. These circumstances can affect profit and threaten the sustainability of the business, and lower rates of investment translate into decreased tax revenue for the Government. (…)
216. Due consideration should be given to proposals by concessionaires with enhanced legal and regulatory requirements attached to their investments (such as third-party certification schemes and rigorous codes of conduct) which incorporate international standards of environmental and social sustainability. (…)
217. Companies of all sizes, structures and modes of operation, both domestic and foreign, and whether wholly or partly owned by the State, should address their human rights impact by practicing due diligence, including implementing measures to identify, prevent, and mitigate adverse human rights consequences and account for their business activities. (…)
222. Concession companies should take all measures to avoid environmental destruction in their operations, including preventing water contamination, soil deterioration, and unnecessary clearing of land or illicit logging. They should ensure that access to infrastructure, such as new roads on their concessions, is accessible to all surrounding communities and should refrain from blocking transportation within the boundaries of the concession. (…)
224. Concession companies – with use of revenue from concession activity – should increase their contributions to the local communities, including by providing social benefits such as health services, educational opportunities and environmental protection measures. (…)
236. The use of international grievance procedures and mechanisms, as well as national human rights institutions abroad, should be further explored by civil society actors in order to bring complaints of alleged human rights abuses of foreign owned or operated business enterprises implicated in human rights violations in Cambodia (whether the businesses are majority or minority shareholders). The possible role of the ASEAN Inter-Governmental Commission on Human Rights may be further examined.
67. The Special Rapporteur consulted with a wide range of stakeholders during his last two missions about their views regarding the need, or desirability, of establishing an independent national human rights institution. An independent national institution that conforms to the Paris Principles is responsible for monitoring and advising the Government on all human rights matter and is empowered to investigate individual complaints has proven to be an effective protection mechanism in many countries, including within the Association of Southeast Asian Nations. He considers that such an institution could also prove useful in filling an important gap in Cambodia.
73. Many individuals have told the Special Rapporteur that it is impossible for there to be a truly independent national institution in the current political context in Cambodia. However, the Special Rapporteur notes that one exception is the Arbitration Council, which has been able to preserve its independence and thus its credibility before the parties to most of the labour-management disputes brought to it. Although the results of arbitration are not binding, he understands that several major buyers and trade unions have accepted to be bound by the conclusions of the Arbitration Council. He further recommends that all those who have a stake in peaceful labour relations in Cambodia work together to ensure that the Council will continue to be adequately and sustainably resourced, with full guarantees for its continued independence.
17. Cambodia is now in a distinct phase of development. Following years of strong economic growth and significant progress in poverty reduction, Cambodia has an ambition to be considered a high-income country by 2050. To help guide it towards realizing that vision, the Government has adopted phase IV of its “Rectangular Strategy” and the localization plan for the Cambodian Sustainable Development Goals and is now finalizing the national strategic development plan. These three documents are designed to provide a coherent development strategy for the country.
19. Human rights unequivocally anchor the 2030 Agenda for Sustainable Development and the Sustainable Development Goals. The 2030 Agenda explicitly states that it is grounded in the Charter of the United Nations, the Universal Declaration of Human Rights and international human rights treaties. Its implementation is to be consistent with the obligations of States under international law, including their human rights obligations. Many of the recommendations Cambodia has received in connection with treaty body reports, the universal periodic review and the reports and communications of special procedures mandate holders relate directly to the targets of the 2030 Agenda.
20. The Sustainable Development Goals are closely linked to civil, cultural, economic, political and social rights. They cover areas such as health, education, decent work, food, water and equality, as well as personal security, access to justice and fundamental freedoms. (…)
24. Underlining the importance of the principle of participation, the 2030 Agenda requires the implementation of the Sustainable Development Goals in a spirit of partnership, with the participation of all countries, stakeholders and people. Goal 17 emphasizes partnerships, including through encouraging and promoting “effective public, public-private and civil society partnerships” (target 17.17).
25. States should establish an accountability framework at the national, regional and global levels. That includes the voluntary review mechanism under the high-level political forum and participatory monitoring mechanisms at the national level. Accountability covers the actions of States and non-State actors, including the business sector, which should be guided by the Guiding Principles on Business and Human Rights. (…)
The Law on Labour (Articles 239, 242 and 244) state that enterprises employing at least fifty workers shall have a permanent infirmary on the premises of the establishment. The infirmary shall be supplied with adequate materials, bandages and medicines to provide emergency care to workers in the event of accidents or occupational illness or sickness during work. (…)
The Law on Labour (Article 186) requires enterprises to set up a nursing room or day-care-centre if the enterprise employing minimum of one hundred women or girls. (…)
- The Ministry of Labour and Vocational Training (MoLVT) to ensure the permanent infirmary is functioning with enough medical supplies for sick workers, and guarantee the provision of nursing and childcare services for working mothers.
- MoLVT to ensure that factories provide women workers the right to sick leave as needed even if the leave is related to their monthly menstruation.
- MoLVT to work with all factories to set up a mechanism for sexual harassment reporting and addressing violations, and to ensure the collective bargaining for women workers to address such issues in a respectful and sensitive manner.
Recommendations for Cambodia:
- Require the transnational companies operating in Cambodia conduct gender impact assessments and provide effective remedies in case of GBV/H. (…)
Recommendations for Cambodia:
- In instances of alleged pregnancy discrimination, the employer should bear the onus of proof. The current Arbitration Council’s approach to cast the onus of proving discrimination on pregnant women must be reversed.
- Cambodia should ratify the ILO Convention 183 and domesticate its provisions, including 14 weeks of paid maternity leave and cash and medical benefits.
- A labor ombudsman mechanism should be established to allow workers to report unlawful working conditions outside of existing conciliation and arbitration process. Regulations should be issued that increase penalties for employers who fail to provide maternity benefits in accordance with the Labor Law.
In Cambodia, where the business sector is plagued with a myriad of human rights concerns, the concept of business and human rights is especially crucial, yet it is a relatively new concept and many Cambodians are unfamiliar with this term
The concept is particularly important for Cambodia’s land sector, where the government has permitted large swathes of land to be leased for commercial interests through economic land concessions. Businesses often rely on false promises, intimidation and violence to secure land from vulnerable citizens. The violations do not end with land acquisition, either. In the aftermath of such land grabs, corporate actors, often with the collusion or complicity of state organs, continue to exploit the dispossessed through child labor, low wages, and denial of compensation.
Despite guarantees in domestic and international law, communities continue to have their land illegally taken away from them, for transfer to private companies for commercial agriculture (e.g. sugar and rubber plantations); and mining and energy projects, such as hydropower dams. Such business activities undermine the rights to adequate housing, food and water, and have long-term environmental and economic impacts.
The weak rule of law in Cambodia is certainly a factor that allows private companies to violate human rights in their business operations with ease.
The victims of business-based human rights abuses are often the most vulnerable in society who have few resources to stand up to such violations – the poor and disadvantaged, women, indigenous communities, and more generally those who are uneducated about their rights and the law.
Benefits of Implementing the United Nations Guiding Principles for the Cambodian Government
- Increased investor – confidence by promoting an environment that could facilitate foreign direct investment, especially from Western countries
- Risk mitigation – the Guiding Principles would mitigate the risks of the Cambodian government violating international human rights law
- Policy coherence – The Guiding Principles provide guidance to the government policy makers on paying due diligence to human rights
- Access to remedy – as the government is already obligated to ensure the availability of remedial mechanisms in accordance with international human rights law, the Guiding Principles provide a useful framework
Benefits of Implementing the United Nations Guiding Principles for the Cambodian Government
- Increased commercial reputation – implementing the Guiding Principles will assist businesses in complying with human rights which will greatly boost their reputations
- Government engagement – the Guiding Principles encourage dialogue between the government and businesses on key issues
- Risk mitigation – Implementing the Guiding Principles assists in alleviating the risks of litigation
- No opportunity costs – committing to human rights will prevent losses arising from employee protests, a lack of consumer satisfaction and non-compliance with buyer standards
- Increased productivity – committing to human rights will boost productivity if employees are satisfied, working in safe environments and have their rights secured
- Competitiveness – operationalizing the Guiding Principles and committing to human rights enhances a company’s edge in the market
- Value chain development – buyers and suppliers benefit from improved relations and increased productivity when companies respect human rights
- Sustainability – with increased productivity and ethical business practices in place, businesses have greater chances to sustain and expand their economic activities
- Increased opportunities to expand and engage export markets – implementing the Guiding Principles creates openings for those markets which require certain standards in relation to traceability, sustainability, certification and good business practices (for example European and American markets)
The main human rights bodies in Cambodia are: The National Assembly Commission on Human Rights (NACHR); the Senate Commission on Human Rights (SCHR); and the Cambodian Human Rights Committee (CHRC). Further, various ministerial departments, such as the Cambodian National Council for Women, the Cambodian National Council for Children and the Disability Action Council address human rights related issues in respect of specific groups of persons.
NACHR and SCHR are legislative human rights commissions composed of nine members and five members, respectively. The NACHR is attached to the National Assembly, while the SCHR is attached to the Senate. These commissions are primarily tasked with addressing human rights issues by monitoring the implementation of human rights and receiving peoples’ complaints. However, both NACHR and SCHR appear to play a very limited role in resolving those complaints, as they can only address them to relevant authorities and the government for actions and solutions. These commissions can also initiate, draft, and review relevant proposals or laws to implement Cambodia’s human rights obligations under domestic laws and international human rights treaties that Cambodia ratifies. They also have mandates to educate and raise awareness about human rights through various outreach programs and play a consultative to the government on relevant laws.
Within the executive framework, the government established the CHRC in order to promote and protect human rights in Cambodia. It carries out investigations into human rights violations and receives complaints. In solving human rights violations addressed in the complaints, CHRC coordinates with relevant authorities and the courts. It also conducts education and awareness raising outreach related human rights. Unlike NACHR and SCHR, CHRC is mainly responsible for preparing and submitting national reports on human rights for the United Nations monitoring bodies, particularly the Universal Periodic Review.
Economic development – a double-edged sword?
Increased globalization and norm diffusion since the late 1980s mean that businesses have a growing responsibility for the safeguarding of human rights. However, the lack of concerted efforts to control the surge of privatization, deregulation, and liberalization of trade reflects the inability or unwillingness of states to establish a responsive system of governance to effectively tackle the increasing impacts of business activities on human rights. The primary objective of economic development should be society-wide improvements, creating equal opportunities and empowering all people, so that they can become involved in the process and benefit from it. The success of economic development must not be defined simply by economic indicators such as Gross Domestic Product, but should be seen as a holistic process that incorporates “economic, social, political, cultural and environmental needs of people to promote improvement in the quality of life for all”.
The impact of globalization on human rights has also been felt in Cambodia. In that context, 1993 can be seen as a significant milestone, with the adoption of a new constitution aimed at promoting liberal democracy and economic development, in an attempt to put the country’s violent past behind it. Since then, Cambodia has ratified eight core human rights conventions. Economic and political development are closely linked: real economic growth is dependent on political stability, and high levels of political violence and human rights violations acted as a brake on Cambodia’s economic growth, averaging 7.7% annually (ADB, 2017), with the garment, tourism, agriculture, and construction sectors the main drivers of the economy. Nevertheless, Cambodia remains one of the poorest countries in Asia, which raises the question: does the country’s rapid growth actually serve the needs and interests of all people, especially those marginalized workers who participate in and contribute to the development process? The adverse effects of business activities on human rights have become a reality and have grown every more acute as economic growth continues.
Cambodia government’s position in business and human rights
(…) In these decades of steady economic development, there is a risk that technical solutions to fix loopholes in laws, regulations, and practices to protect workers from getting harmed are thwarted by the political reality in Cambodia. Economic growth often breeds a human rights ‘governance gap’, especially in a developing economy with institutionalized corruption like Cambodia, where the government shows no real interest in imposing more regulations and obligations on businesses to guarantee decent work. Furthermore, in their pursuit of national economic development, policy makers in any developing economy tend to adopt laws and regulations that attract investment and employment, while they also try to ensure that legal frameworks protect workers’ rights, directly or indirectly, to decent work and a safe working environment. In Cambodia, the government seems to lack the capacity and the will to develop and apply such legal obligations for fear of losing investment; businesses are able to take advantage of this fear and exercise influence over the government and its policies. (…)
Interplay of domestic and international law in Cambodia
The interplay between international law incorporated into the Constitution and domestic law in Cambodia supports the conclusion that the ECCC’s jurisprudence is applicable in domestic courts because international law incorporated through the Constitution is also domestic law. Cambodia appears to adhere to a dualist (as opposed to a monist) system in its approach to implementing international law in its domestic legal order. As distinct from a monist system, where international law exists alongside the domestic law as equally applicable by courts, a dualist system considers international law to be separate from domestic law and only applies international law if it is directly incorporated into domestic law through a State’s constitution or through implementing legislation. In Cambodia, international human rights principles have been explicitly incorporated into the domestic framework by the Constitution and are thus, at least in theory, applicable in domestic courts.
The Constitutional Council has recognized that, although a law may not violate the Constitution, a court must consider whether its application in a particular case would be incompatible with either provisions in the Constitution, other Cambodian law or international conventions recognized by Cambodia. In finding that a proposed amendment to the Law on the Aggravating Circumstances of Felonies was consistent with the Constitution, the Constitutional Council noted that the trial judge should rely not only on the proposed amended Article for a conviction, but also on “the laws”. The term “laws” refers to “the national laws, including the Constitution which is the supreme law, all the laws that remain in force, and the international laws already recognized by the Kingdom of Cambodia…” Thus, despite the fact that international law does not appear to be directly enforceable in domestic courts, local judges, like ECCC judges, are constitutionally obliged to consider international human rights conventions and fair trial rights in applying and interpreting domestic law.
- How do business activities contribute to violations of human rights in Cambodia?
- Are there any Cambodian laws and policies established to regulate businesses’ responsibility for human rights abuses?
- Are there any legal requirement for businesses to carry out human rights due diligence or human rights impact assessment in Cambodia?
- To what extent do businesses in Cambodia implement the United Nations Guiding Principles on Business and Human Rights?
- What measures has the Cambodian government taken to promote the respect of human rights by businesses operating in Cambodia? What (further) measures should it undertake to implement the UN Guiding Principles?
- What are is the role of civil society organizations in holding businesses accountable for human rights violations? How does the task of NGOs change when business wrongdoing and state conduct both are a cause of human rights violations?
- John Ruggie, Business and Human Rights: The Evolving International Agenda (2007) https://ssrn.com/abstract=976547.
- An international legally binding instrument on Transnational Corporations and Other Business Enterprises with respect to human rights, UN Human Rights Council sessions (2013-) www.business-humanrights.org/en/binding-treaty/un-human-rights-council-sessions
- Jolyon Ford and Claire Methven O’Brien, ’Empty Rituals or Workable Models? Towards a Business and Human Rights Treaty’ in University of New South Wales Law Journal, Vol.40(3) (2017) https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3206479#.
- Radu Mares, Three baselines for business and human rights, Business and Human Rights Research Brief 1/2017 (Raoul Wallenberg Institute) http://portal.research.lu.se/ws/files/34400601/Three_baselines_for_business_and_human_rights.pdf
- David Kinley and Tom Davis, Human Rights Criticism of the World Bank’s Private Sector Development and Privatization Projects (2008) https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1133179
- Cambodia League for the Promotion and Defense of Human Rights, Smoke on the Water: A Human Rights and Social Impact Assessment of the Destruction of the Tompoun/Cheung Ek Wetlands (2020) https://www.licadho-cambodia.org/reports.php?perm=231.
- Cambodia League for the Promotion and Defense of Human Rights, Collateral Damage: Land Loss and Abuses in Cambodia’s Microfinance Sector (2019) https://www.licadho-cambodia.org/reports.php?perm=228.
- Cambodian Center for Human Rights, Business and Human Rights in Cambodia: Constructing the Three Pillars (2010) http://ticambodia.org/library/wp-content/files_mf/145128428220101130FullReportBusinessandHumanRightsinCambodiaConstructingtheThreePillars.pdf
- Human Rights Council, Report of the Special Rapporteur on the Situation of Human Rights in Cambodia: Comments by the State, A/HRC/42/60/Add.2 (2019) https://cambodia.ohchr.org/sites/default/files/Annual-reports/Add2%20Comments%20by%20the%20State.pdf.
- Kheang Un, ‘Cambodia: Moving away from Democracy?’ in International Political Science Review, 2011;32(5):546-562, (2011) https://journals.sagepub.com/doi/abs/10.1177/0192512111417120.
 World Bank, Overview: Cambodia, https://www.worldbank.org/en/country/cambodia/overview
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